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Book outline for Policy Manual
  • Policy Manual
    • Search
    • Updates
    • Table of Contents
    • Volume 1 - General Policies and Procedures
    • Volume 2 - Nonimmigrants
    • Volume 3 - Humanitarian Protection and Parole
    • Volume 4 - Refugees and Asylees
    • Volume 5 - Adoptions
    • Volume 6 - Immigrants
    • Volume 7 - Adjustment of Status
    • Volume 8 - Admissibility
    • Volume 9 - Waivers and Other Forms of Relief
    • Volume 10 - Employment Authorization
      • Part A - Employment Authorization Policies and Procedures
      • Part B - Specific Categories
        • Chapter 1 - Purpose and Background
        • Chapter 2 - Employment-Based Nonimmigrants
        • Chapter 3 - Reserved
        • Chapter 4 - Reserved
    • Volume 11 - Travel and Identity Documents
    • Volume 12 - Citizenship and Naturalization
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  3. Volume 10 - Employment Authorization
  4. Part B - Specific Categories
  5. Chapter 2 - Employment-Based Nonimmigrants

Chapter 2 - Employment-Based Nonimmigrants

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  • Guidance
  • Resources (6)
  • Appendices (0)
  • Updates (7)
  • History (2)

A. Employment Authorization for Certain H-4, E, and L Nonimmigrant Dependent Spouses

As of November 12, 2021, USCIS considers certain E-1, E-2, E-3 and L-2 nonimmigrant dependent spouses employment authorized incident to status.[1]

To obtain an Employment Authorization Document (EAD or Form I-766) evidencing both identity and employment authorization, such dependent spouses may file an Application for Employment Authorization (Form I-765).

E and L spouses are issued an Arrival-Departure Record (Form I-94) by USCIS or U.S. Customs and Border Protection (CBP).[2] As of January 30, 2022, USCIS and CBP began issuing Forms I-94 with the following new Class of Admission (COA) codes for certain E and L spouses: E-1S, E-2S, E-3S, and L-2S. The application of these new COA codes distinguishes dependent spouses from dependent children, who are not employment authorized incident to status. An unexpired Form I-94 notated with E-1S, E-2S, E-3S, or L-2S nonimmigrant status is acceptable as evidence of employment authorization under List C of Form I-9.

USCIS generally provides notices to E and L spouses with a Form I-94 issued by USCIS before January 30, 2022 that was notated with E-1, E-2, E-3, E-3D, E-3R, or L-2 nonimmigrant status that state they were identified as an employment authorized spouse and may use the notice, in combination with their Form I-94 issued by USCIS as evidence of employment authorization. Such notice, together with an unexpired Form I-94 reflecting E-1, E-2, E-3, E-3D, E-3R, or L-2 nonimmigrant status, is acceptable as evidence of employment authorization under List C of Form I-9.[3]

Notwithstanding this change, E and L spouses may continue to apply for an EAD to obtain evidence of identity and employment authorization by properly filing Form I-765, with the appropriate fee, if applicable.

Validity Period

USCIS has discretion to establish a specific validity period for employment authorization, though not to exceed certain amounts of time in some circumstances.[4] USCIS generally grants the EAD with a validity period that aligns with the applicant’s Form I-94 expiration date, not to exceed 2 years for E and L dependent spouses, or 3 years for H-4 dependent spouses.

Applications to Renew Employment Authorization, EADs, and Automatic Extensions

Beginning November 12, 2021, the EAD of an E and L dependent spouse, and employment authorization and EAD of an H-4 dependent spouse, will be automatically extended for a period of up to 180 days if:

  • The dependent spouse properly filed an Application for Employment Authorization (Form I-765) for a renewal of their E, L, or H-4 dependent spouse-based EAD before the current EAD expired;[5] and

  • The dependent spouse has an unexpired Form I-94 indicating valid E, L, or H-4 derivative status.

Any such automatic extension will terminate automatically on the earlier of:

  • The end of the validity period of the nonimmigrant status, as shown on the Form I-94;

  • The approval or denial of the application to renew the previous EAD using Form I-765; or

  • 180 days from the date of the expiration of the previous EAD.

The following combination of documents evidence the automatic extension of the previous EAD:

  • The facially expired previous EAD stating Category A17, A18, or C26, as applicable;

  • A Notice of Action (Form I-797C) for Form I-765 with Class requested in the same category as the expired EAD (either “(a)(17),” “(a)(18),” or “(c)(26),” as applicable), and showing that the renewal application was filed before the EAD expired; and

  • An unexpired Arrival-Departure Record (Form I-94) reflecting H-4, E, or L derivative status, as applicable.

With this document combination, the expired EAD is considered unexpired and acceptable as evidence of identity and employment authorization for completion of Employment Eligibility Verification (Form I-9). Reverification of employment authorization is required at the end of the automatic extension period.

Footnotes


[^ 1] This policy does not apply to dependents (including spouses) of Employees of the Taipei Economic and Cultural Representative Office (TECRO) and Taipei Economic and Cultural Offices (TECO), who continue to be required to apply for employment authorization per 8 CFR 274a.12(c)(2). Further, this policy does not apply to spouses of Long-Term Investors in the Commonwealth of the Northern Mariana Islands (E-2 CNMI Investors) who are also required to apply for employment authorization per 8 CFR 274a.12(c)(12). Additionally, as noted in 8 CFR 214.2(e)(23)(x)(B), spouses of E-2 CNMI investors who obtained such status based upon a Foreign Retiree Investment Certificate are not eligible for work authorization.

[^ 2] For additional information on Form I-94, see CBP’s I-94 Website: Travel Records for U.S. Visitors.

[^ 3] This process of USCIS sending a supplemental notice is not available for Forms I-94 issued by CBP because USCIS cannot issue documents on behalf of CBP.

[^ 4] See 8 CFR 274a.12.

[^ 5] The renewal application and the current EAD should reflect the same “Class requested,” either “(a)(17),” “(a)(18),” or “(c)(26).”

Resources

Legal Authorities

8 CFR 274a.12 - Classes of aliens authorized to accept employment

Forms

AR-11, Change of Address

G-28, Notice of Entry of Appearance as Attorney or Accredited Representative

I-765, Application for Employment Authorization

I-9, Employment Eligibility Verification

Other Materials

How to Use the USCIS Policy Manual Website (PDF, 2.99 MB)

Appendices

No appendices available at this time.

Updates

POLICY ALERT - Documentation of Employment Authorization for Certain E and L Nonimmigrant Dependent Spouses

March 18, 2022

U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual to address the documentation that certain E and L spouses may use as evidence of employment authorization incident to their status.

Read More
Affected Sections

10 USCIS-PM A.2 - Chapter 2 - Eligibility Requirements

10 USCIS-PM B.2 - Chapter 2 - Employment-Based Nonimmigrants

POLICY ALERT - Employment Authorization for Certain H-4, E, and L Nonimmigrant Dependent Spouses

November 12, 2021

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to address automatic extension of employment authorization for certain H-4, E, and L nonimmigrant dependent spouses. USCIS is also rescinding the 2002 Legacy Immigration and Naturalization Service memorandum entitled, “Guidance on Employment Authorization for E and L Nonimmigrant Spouses, and for Determinations on the Requisite Employment Abroad for L Blanket Petition” (2002 INS memorandum).

Read More
Affected Sections

10 USCIS-PM B.1 - Chapter 1 - Purpose and Background

10 USCIS-PM B.2 - Chapter 2 - Employment-Based Nonimmigrants

POLICY ALERT - Rescinding Guidance on Discretionary Employment Authorization for Parolees

August 12, 2021

U.S. Citizenship and Immigration Services (USCIS) is rescinding policy guidance in the USCIS Policy Manual on discretionary employment authorization for parolees.

Read More
Affected Sections

1 USCIS-PM C.1 - Chapter 1 - Purpose and Background

3 USCIS-PM F.1 - Chapter 1 - Purpose and Background

10 USCIS-PM B.2 - Chapter 2 - Employment-Based Nonimmigrants

Technical Update - Replacing the Term “Alien”

May 11, 2021

This technical update replaces all instances of the term “alien” with “noncitizen” or other appropriate terms throughout the Policy Manual where possible, as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].

Affected Sections

1 USCIS-PM - Volume 1 - General Policies and Procedures

2 USCIS-PM - Volume 2 - Nonimmigrants

6 USCIS-PM - Volume 6 - Immigrants

7 USCIS-PM - Volume 7 - Adjustment of Status

8 USCIS-PM - Volume 8 - Admissibility

9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief

10 USCIS-PM - Volume 10 - Employment Authorization

11 USCIS-PM - Volume 11 - Travel and Identity Documents

12 USCIS-PM - Volume 12 - Citizenship and Naturalization

POLICY ALERT - Applications for Discretionary Employment Authorization Involving Certain Adjustment Applications or Deferred Action

January 14, 2021

U.S. Citizenship and Immigration Services (USCIS) is providing policy guidance in the USCIS Policy Manual regarding applications for discretionary employment authorization based on 8 CFR 274a.12(c)(9) (pending application for adjustment of status under INA 245) or 8 CFR 274a.12(c)(14) (grant of deferred action). USCIS is also providing guidance outlining the categories of aliens eligible for discretionary employment authorization.

Read More
Affected Sections

10 USCIS-PM A - Part A - Employment Authorization Policies and Procedures

10 USCIS-PM B - Part B - Specific Categories

Technical Update - Replacing the Term “Foreign National”

October 08, 2019

This technical update replaces all instances of the term “foreign national” with “alien” throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].

Affected Sections

1 USCIS-PM - Volume 1 - General Policies and Procedures

2 USCIS-PM - Volume 2 - Nonimmigrants

6 USCIS-PM - Volume 6 - Immigrants

7 USCIS-PM - Volume 7 - Adjustment of Status

8 USCIS-PM - Volume 8 - Admissibility

9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief

10 USCIS-PM - Volume 10 - Employment Authorization

11 USCIS-PM - Volume 11 - Travel and Identity Documents

12 USCIS-PM - Volume 12 - Citizenship and Naturalization

POLICY ALERT - Employment Authorization for Parolees

August 19, 2019

U.S. Citizenship and Immigration Services (USCIS) is updating its existing policies on the exercise of discretion to address the use of discretion when assessing if certain foreign nationals who are paroled into the United States should be employment authorized.

Read More
Affected Sections

10 USCIS-PM B.2 - Chapter 2 - Employment-Based Nonimmigrants

Archived Content

This content has been superseded by the current version available in the Guidance tab. The historical versions linked below reflect the pertinent policy in effect on that date and dates reflect when updates occurred. The historical versions are provided for research and reference purposes only. USCIS employees should not rely on the historical versions for current laws, precedent decisions, policies, directives, guidance, and procedures.

The History tab was added to the USCIS Policy Manual on June 11, 2021, and provides historical versions on and after that date. For historical versions before June 11, 2021, navigate to the USCIS Policy Manual within the USCIS website at: https://archive.org

Version History:

  • View version archived on November 12, 2021
  • View version archived on May 11, 2021

Select a date to view the historical version

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